Automated Data Systems v. Myers , 96 N.C. App. 624 ( 1989 )

EAGLES, Judge.

A preliminary injunction is interlocutory in nature, issued after notice and hearing, which restrains a party pending final determination on the merits. Pursuant to G.S. § 1-277 and G.S. § 7A-27, no appeal lies to an appellate court from an interlocutory order or ruling of a trial judge unless such order or ruling deprives the appellant of a substantial right which he would lose absent a review prior to final determination.

A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983) (citations omitted). Our first inquiry is whether the preliminary injunction deprives defendant Myers of a substantial right which he would lose unless we review this issue prior to a final determination on the merits. On this record we conclude that defendant would not be deprived of a substantial right if there is no review of these issues prior to a final determination on the merits.

The trial court’s injunction barred defendant from participating in any employment that competed with plaintiff’s business in the following geographic locations: the city of Hickory or any other city where defendant worked for plaintiff; and the counties of Catawba, Burke, Caldwell, Lincoln, Iredell, Watauga and Alexander. We find no evidence in this record to show that defendant Myers was working for CDS in any of those areas. Myers’ testimony was that he worked on cash registers either in the shop (in Charlotte) or that he traveled to Wadesboro (in Anson County), Asheville (in Buncombe County) and Lancaster, South Carolina. Defendant Myers’ work is not affected by the injunction because none of those counties are included in the preliminary injunction. Although there was evidence that defendant Myers had been hired by CDS to service accounts in Iredell County, that the Charlotte office also serviced accounts in Lincoln and Catawba Counties, and that CDS contemplated sending Myers to training school so he could service an account in Caldwell County, there is no evidence that these activities were occurring.

The injunction entered against defendant Myers does not deprive him of a substantial right; it does not enjoin him from engaging in any activity for defendant CDS that he was engaged in before the injunction was entered. Further, the injunction’s restrictions are not so broad as to foreclose Myers from all possible employment in his field of expertise. Cf. Masterclean of North Carolina, Inc. v. Guy, 82 N.C. App. 45, 345 S.E.2d 692 (1986) (preliminary injunction against working as laborer in field of asbestos removal in five-state area is a deprivation of a substantial right); Robins & Weill, Inc. v. Mason, 70 N.C. App. 537, 320 S.E.2d 693, disc. rev. denied, 312 N.C. 495, 322 S.E.2d 559 (1984) (where enforcement of covenant not to compete effectively closed defendants out of the insurance business where they had begun a business of their own, preliminary injunction deprived defendants of a substantial right); Forrest Paschal Machinery Co. v. Milholen, 27 N.C. App. 678, 220 S.E.2d 190 (1975) (preliminary injunction against competing with plaintiff within a radius of 350 miles of plaintiff’s business affected a substantial right of defendants).

For the reasons stated, defendant’s appeal is dismissed as interlocutory.

Dismissed.

Judges Johnson and Greene concur.